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HomeMy WebLinkAbout2009-2107 Civil Nick Draft 2 November 16; 9:48 COMMONWELATH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS OF DEPARTMENT OF TRANSPORTATION : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : RUSSELL ALAN MUSSER : NO. 09-2107 CIVIL ORDER OF COURT rd AND NOW , this 3 day of December, 2009, after hearing and consideration of the parties’ arguments and briefs, IT IS HEREBY ORDERED AND DIRECTED that Musser’s motor vehicle operating privileges be reinstated by the DOT. By the Court, __________________________ M. L. Ebert, Jr., J. Philip M. Bricknell, Esquire Assistant Counsel Department of Transportation H. Anthony Adams, Esquire Attorney for Musser COMMONWELATH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS OF DEPARTMENT OF TRANSPORTATION : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : RUSSELL ALAN MUSSER : NO. 09-2107 CIVIL OPINION and ORDER OF COURT Ebert, J., December 3, 2009 – On April 3, 2009, Russell Alan Musser, (hereinafter Musser) filed a petition to set aside a suspension of his driving privileges. The Petition sought to set aside a one year driving license suspension imposed by the Pennsylvania Department of Transportation (hereinafter DOT) based on Musser’s conviction for Driving Under Influence of Alcohol in violation of 75 Pa.C.S.A. Section 3802(a)(1). A hearing on the matter began on June 19, 2009, and was continued to and completed on September 2, 2009. STATEMENT OF FACTS Musser was charged in Cumberland County, with violating both Sections 3802(a)(1) General Impairment and 3802(b) (High Rate of Alcohol) of the Vehicle Code. On January 8, 2009, Musser entered a plea of guilty to a violation of Section 3802(a)(1), his first offense. An offense under 3802(a)(1), when the Defendant is a first offender, is an ungraded misdemeanor carrying a maximum penalty of up to 6 months in prison. 75 Pa.C.S.A. Section 3803(a)(1). The minimum sentence for this first offense is that the Defendant undergo a mandatory minimum term of 6 months probation. 75 Pa.C.S.A. Section 3804(a)(1)(i). Pursuant to a plea agreement with the Commonwealth, Musser was sentenced to a term of imprisonment of not less than 48 hours nor more than 6 months in prison. Accordingly, the Defendant’s sentence was within the legal limits allowed by law. A pre-sentence investigation was filed with the sentencing Judge which included a computation for both the standard and 2 aggravated ranges under the Pennsylvania Sentencing Guidelines. The standard range sentence called for “RS-RS” (restorative sanctions). The aggravated range called for “Restricted Intermediate Punishment (RIP) to 3 months in prison” 204 Pa.Code Section 303.16. Pursuant to the Defendant’s plea agreement, the Defendant was sentenced in the aggravated range to a sentence of 2 days to 6 months in the Cumberland County Prison. While the sentencing judge did not recite a reason for the aggravated range sentence at the time of sentencing, a review of the record including the Defendant’s guilty plea colloquy on January 8, 2009, clearly indicates that the reason for the aggravated range sentence was “the understanding that the Defendant will serve a set sentence of 48 hours to 6 months in full satisfaction of all charges at this term and number… ” The DOT’s Bureau of Driver Licensing received notice that Musser had been convicted of violating Section 3802(a)(1), an ungraded misdemeanor. The notice (Commonwealth’s Exhibit 2), indicated that the Defendant had a blood alcohol limit of .115% and additionally that he was sentenced to prison. As a result of this notice, the DOT, sua sponte, determined that the Defendant had in fact been sentenced under the provisions of Section 3804(b)(1) of the Vehicle Code and subsequently they suspended Musser’s operating privileges for 12 months pursuant to Section 3804(e)(2)(i). Musser filed a timely petition to set aside suspension of driving privilege with this Court on April 3, 2009. DISCUSSION I. A suspension can only flow from a conviction. In Ryan v. Dep’t of Transp., 946 A.2d 191 (Pa. Cmwlth. 2008), “[the Department] suspended [the licensee’s] operating privilege” “after the licensee had his underlying charge 3 dismissed.” Poborski v. Dep’t. of Transp., 964 A.2d 66, 71 (Pa. Cmwlth. 2009). The Trial Court held “that, at the time that [the Department] imposed the suspension the underlying violation had been eliminated by the prosecutor's previous withdrawal of charges.” Id. The Commonwealth Court affirmed the Trial Court's decision “noting that ‘[a] suspension can only flow from a violation,’ and since the prosecutor subsequently withdrew the underlying charges prior to [the Department's] suspension imposition, ‘there was no violation, and therefore no basis for the suspension of [licensee's] driving privileges.’” Id. citing Ryan, 946 A.2d at 194. In the case sub judice, Musser was only convicted of violating Section 3802(a)(1), which was an ungraded misdemeanor and his first offense. The prosecutor subsequently withdrew the charge for violating Section 3802(b). However, the DOT imposed a suspension of Musser’s operating privilege pursuant to Section 3804(e)(2)(i) equating his conviction to a violation of Section 3802(b). Like in Ryan, the underlying violation had been eliminated by the prosecutor’s withdrawal of the charge. A suspension can only flow from a conviction. Musser was only convicted of violating Section 3802(a)(1) and not for violating Section 3802(b). Furthermore, Section 3804(e)(2)(iii) states that “[t]here shall be no suspension for an ungraded misdemeanor under Section 3802(a) where the person is subject to the penalties provided in subsection (a) and the person has no prior offense.” Musser was convicted for an ungraded misdemeanor under Section 3802(a), and therefore was subject to the minimum penalties provided in 3804(a)(1). As such he was not subject to any suspension and no basis exists for the suspension of Musser’s driving privileges under Section 3804(e). II.The Discretion of the District Attorney. The DOT maintains that the issue presented in this case is one of first impression. There is no question that the legislature has expressed a determination to reduce the number of deaths, 4 injuries and accidents caused by intoxicated drivers, Commonwealth v. Hill, 549 A.2d 583, (Pa.Super. 1988), and that the suspension of operating privileges serves the remedial goal of protecting the public from unsafe driving practices. Ponce v. Com., Dept. of Transp., Bureau of Driver Licensing, 685 A.2d 607, (Pa.Cmwlth. 1996). Unfortunately, for the Department in this case, the legislature has also linked the imposition and the amount of the license suspension to the actual crime for which an offender is convicted. The DOT relies on the cases of Pompey v. Com., Dept. of Transp., Bureau of Driver Licensing, 768 A.2d 372 (Pa. Cmwlth. 2001), and Com., Dept. of Transp., Bureau of Driver Licensing v. Lefevre, 533 A.2d 501, to support its position. In Pompey, pursuant to a plea agreement with the District Attorney, approved by the Court, a Defendant who entered into ARD was allowed to avoid a license suspension in exchange for performing 75 hours of community service. The Vehicle Code in effect at the time required the judge to impose a suspension of operating privileges as a result of acceptance into the ARD program. Since the Judge did not impose the 60 day suspension, the DOT did. The driver appealed, and the Commonwealth Court sustained the appeal and overturned the suspension. Applying the holding in Lefevre, the Court did however state that the DOT cannot be bound by the terms of a plea agreement that withdraws a civil license suspension. Pompey v. Com., Dept. of Transp., Bureau of Driver Licensing, 768 A.2d 372 (Pa. Cmwlth. 2001). But, the Commonwealth Court was also constrained to sustain the driver’s appeal even though the sentencing judge erred in not imposing the suspension. The Court held that “the Vehicle Code does not provide DOT with the authority to suspend a licensee’s operating privilege once he or she is accepted into ARD. That authority is specifically reserved for the Judge who must comply with the suspension requirements of that section.” Id. at 374. The Commonwealth Court ruled that “because review 5 of this now final plea agreement is not within the jurisdiction of this Court, see 42 Pa.C.S.A. Section 761-764, we have no choice but to accept its terms.” Id. at 374-375. In Lefevre, the Commonwealth Court dealt with the issue of reinstating a driver’s operating privileges after the DOT had already imposed a suspension pursuant to 75 Pa.C.S.A. Section 1547 as a result of receiving a notice that the Defendant had refused a blood alcohol test. The suspension was effective November 12, 1984. The Defendant did not appeal the suspension within the required 30 day appeal period, and in fact, mailed in his license and began serving the suspension. Much later, on May 7, 1985, the Defendant finally entered a guilty plea to two counts of driving under the influence pursuant to a plea agreement with the District Attorney. The terms of that agreement called for the District Attorney to withdraw the notice of refusal which had been sent to the DOT. However, the trial Court had never been informed that the Defendant was already serving the 12 month refusal suspension and that the appeal period for that suspension had expired. The trial judge ordered, based on the plea agreement, that the DOT reinstate the Defendant’s operating privileges. The Commonwealth Court in reversing this order “concluded that neither the District Attorney in plea bargaining nor the Court of Common Pleas when deciding a criminal matter has jurisdiction to bind DOT to withdraw a civil license suspension.” However, the Court went on to say that “statutory suspensions following a conviction for driving under the influence are not bargaining chips to be traded away in exchange for criminal convictions.” Com., Dept. of Transp., Bureau of Driver Licensing v. Lefevre, 533 A.2d 501, 503. In this case, the suspension was not dealt away after it had been imposed. The District Attorney chose to allow the Defendant to plead to what in essence was the lesser 6 offense of two charges he was facing. The result in this case would be totally different if the District Attorney had insisted that the Defendant plead guilty to the Section 3802(b), Driving Under the Influence, High Rate of Alcohol charge which required a suspension, but then agreed to not impose the required suspension which follows from such a conviction. The District Attorney of a county is by law designated the “chief law enforcement officer for the county in which he is elected.” 71 Pa.C.S.A. Section 732-206(a). It is a “well recognized principle that a District Attorney has general and widely recognized power to conduct criminal litigation and prosecutions on behalf of the Commonwealth, and to decide whether and when to prosecute, and whether and when to continue or discontinue a case.” Commonwealth v. Stipetich, 652 A.2d 1294 (Pa. 1995), Commonwealth v. McElroy, 665 A.2d 813 (Pa.Super. 1995). A District Attorney’s good faith discretion to prosecute or dismiss a criminal charge is recognized as being very broad and absent some invidiously discriminatory factor unrelated to the protection of society cannot be overturned. (See In Re: Wilson, 879 A.2d 199 (Pa.Super. 2005)). A fair analysis of this case reveals that the District Attorney in an exercise of his discretion did nothing more than he routinely does in a multitude of cases. That is, he chose to accept the Defendant’s plea to the less serious of two charges in full satisfaction of the other charge. An examination of the record in this case makes clear that the District Attorney knew that by pleading guilty to the Section 3802(a)(1) charge, he was in fact negating the possibility of this Defendant receiving a license suspension. He did however exact a penalty for this, which is usually not applied to first time general impairment offenders, that being two days in prison. In today’s mobile society, many might say that a 12 month driving suspension is inherently more severe than two days in prison. However, the effect on a citizen, who has no 7 prior criminal record, in surrendering his personal freedom and being subject to life in a prison for even a relatively short period, is far from inconsequential. In any regard, this choice was well within the recognized discretion of the District Attorney. CONCLUSION The DOT must reinstate Musser’s motor vehicle operating privileges. A suspension of those privileges can only flow from a conviction, as there was no conviction that permitted a suspension. Accordingly, the imposition of the suspension of Musser’s motor vehicle operating privileges was outside the bounds of the DOT’s authority. Accordingly the following order is entered: ORDER OF COURT rd AND NOW , this 3 day of December, 2009, after hearing and consideration of the parties’ arguments and briefs, IT IS HEREBY ORDERED AND DIRECTED that Musser’s motor vehicle operating privileges be reinstated by the DOT. By the Court, __________________________ M. L. Ebert, Jr., J. Philip M. Bricknell, Esquire Assistant Counsel Department of Transportation H. Anthony Adams, Esquire Attorney for Musser 8